Litton Educational Publishing, Inc.

AMERICAN BOOK DIVISION American Book Division, Litton Educational Pub- lishing, Inc. and Litton Educational Publishing, Inc. and United Papermakers and Paperworkers, AFL- CIO. Cases 9-CA-6686 and 9-RC-9367 October 30, 1974 PROPOSED DECISION, ORDER,' AND DIRECTION OF SECOND ELECTION By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS The charge in Case 9-CA-6686 was filed on De- cember 20, 1972, by United Papermakers and Paper- workers, AFL-CIO, hereinafter called the Union or Petitioner, alleging that American Book Division, Litton Educational Publishing, Inc., hereinafter called Respondent or Employer, discriminatorily dis- charged five employees. Simultaneously with the fil- ing of its charge, the Union filed a petition in Case 9-RC-9367, seeking a representation election in a unit at the Employer's distribution center and ware- house. Pursuant to a Stipulation for Certification Upon Consent Election, an election was held on February 11, 19722 The tally of ballots showed that 23 votes were cast for the Union; 31 votes were cast against the Union; 15 ballots were challenged; and I ballot was void. Following the election, the Union filed timely objections to conduct affecting the results of the election. On March 6, 1972, the complaint in Case 9- CA-6686 was issued 3 alleging that Respondent vio- lated Section 8(a)(1) of the National Labor Relations Act, as amended, herein called the Act, by various acts of interrogation, threats, and surveillance, creat- ing the impression of surveillance, and promising benefits. The complaint also alleged that Respon- dent, on December 16, 1972, discharged and/or laid off employees Frances McManama, Carolyn Coots, Bessie Prather, and Carl Cooke, because of their in- terests in, sympathies for, and activities on behalf of the Union, thus discriminating against them in viola- tion of Section 8(a)(3) of the Act 4 i Any party may, within 20 days from the date hereof file with the Board in Washington, D.C, eight copies of a statement setting forth exceptions to this Proposed Decision , Order, and Direction of Second Election , together with seven copies of a brief in support of said exceptions and, immediately upon such filings, serve copies thereof on each of the other parties 2 The stipulated unit was described as follows All warehouse employees at the Employer's Florence, Kentucky, location, but excluding all office clerical employees, all guards, professional employees , temporary summer 3ployees , and supervisors as defined in the Act The complaint was amended on June 29, 1972 °A fifth employee, Robert Willoughby, was discharged with the four employees named in the complaint Although Willoughby was named in the 413 On June 26, 1972, the Regional Director issued his report of election, objections to election, challenged ballots, order directing hearing, order consolidating cases, order transferring cases to the Board, and no- tice of hearing, in which he found that the Union had withdrawn all of its objections except number three, which related to alleged unlawful surveillance. The Regional Director concluded that the issue involved in the remaining objection should be consolidated for an evidentiary hearing with the unfair labor prac- tice proceeding in Case 9-CA-6686. The Regional Director also concluded that the challenges could best be resolved at the hearing. Thereafter, on July 7, 1972, the Employer filed timely exceptions to the Re- gional Director's report and a request for special per- mission to appeal portions of the Regional Director's order directing hearing. On July 28, 1972, the Board issued an Order, finding that the Employer's excep- tions and appeal raised no substantial or material is- sues warranting reversal of the Regional Director. Pursuant to due notice, a hearing before Adminis- trative Law Judge Ivar H. Peterson was held in Cin- cinnati, Ohio, on August 30 and 31, September 1, 6, 7, and 8, and October 3, 4, 5, 24, and 25, 1972. Subsequent to the hearing, Respondent filed a mo- tion to disqualify the Administrative Law Judge. On November 20, 1972, Administrative Law Judge Ivar H. Peterson withdrew from further participation in the case. On August 23, 1973, the Board granted Respondent's motion to transfer the proceeding to the Board for appropriate disposition, in accordance with Section 102.36 of the Board's Rules and Regula- tions,5 Series 8, as amended. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board, having authorized the transfer of the case, and having received and considered briefs filed by the Respondent and the General Counsel and the entire record in the case, makes the following find- ings: charge, he was not listed in the complaint 5 Sec 102 36, Unavailability of administrative law judges reads In the event the administrative law judge designated to conduct the hearing becomes unavailable to the Board after the hearing has been conducted and before the filing of his decision, the Board may transfer the case to itself for purposes of further hearing or issuance of a pro- posed decision and order on the record as made, or both, or may re- quest the chief administrative law judge in Washington , D.C, or the presiding Judge, San Francisco, California, as the case may be, to desig- nate another administrative law Judge for such purposes 214 NLRB No. 44 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, the answer admits, and we find that Respondent, a wholly owned subsidiary of Litton Industries, is, and at all material times herein has been, a New York corporation engaged in its Florence, Kentucky, location in the warehousing and distribution of books to elementary and high schools in the Greater Cincinnati, Ohio, area and elsewhere, and that during the 12-month period preceding the issuance of the complaint, which is a representative period, Respondent sold and shipped, directly in in- terstate commerce, educational materials valued in excess of $50,000 from its warehouse facility in Flor- ence, Kentucky, to customers located outside the State of Kentucky, and during the same period re- ceived in Kentucky goods and materials directly from points outside Kentucky, valued in excess of $50,000. Accordingly, we find, as alleged in the com- plaint, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, and the answer admits, and we find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The Union's organizing campaign commenced in mid-September 1971. During the campaign, Respon- dent allegedly discriminatorily discharged four em- ployees in violation of Section 8(a)(3) of the Act, and, through the conduct of its supervisors, allegedly engaged in acts of interrogation, threats, and surveil- lance, created the impression of surveillance, and promised benefits, all in violation of Section 8(a)(1) of the Act. Since several of these allegations involve conduct engaged in by Herbert Payton, Reno Dea- ton, and Randy Conley, whom the General Counsel contends are supervisors within the meaning of the Act, a contention opposed by Respondent, an exami- nation of their status is required. B. The Supervisory Status of Herb Payton, Reno Deaton, and Randy Conley The Florence, Kentucky, warehouse serves as a distribution center for Respondent's educational books. Computerized orders are sent to the ware- house from Respondent's "computer center" located in New York City, and Cincinnati, Ohio . The orders are delivered to the warehouse and are generally sort- ed into three main groups, "parcel post" (or "mail" ) orders, "freight" orders, and "International" orders. The parcel post orders are sent to the parcel post line where they are further sorted according to compa- nies: American Book, McCormick-Mathers, Van Nostrand Reinhold and Times -Mirror. The freight orders are sent to the freight line where they are sort- ed into the same four categories . The international orders are handled generally the same way. The books, received from various publishing com- panies, initially come into the receiving department. The books are then placed in a reserve area and then into the order assembly area which is arranged into numbered rows of bins of books . It is from the latter area that the order pickers take books to fill specific customer orders. The books are packed at two main packing lines; the parcel post line for small orders and the freight line for large orders. The packed or- ders are then transported to the shipping area. The remaining space in the warehouse consists of an office area with approximately four employees; the international department which is responsible for order picking and packing orders destined for out- side of the continental United States ; and a small "Times-Mirror" department which handles the more expensive books and art prints . The returns area is responsible for processing books returned from cus- tomers. There are three admitted supervisors at the ware- house, where, during the relevant times, approxi- mately 80 employees were employed . Robert Ul- bricht, the manager of warehousing and shipping, is responsible for the receiving , storing, and shipping of all merchandise at the warehouse . Arnold Mader is the assistant manager and Charles Conley is the warehouse foreman . Mader is responsible for the re- ceiving area, the reserve area, the returns area, main- tenance, and housekeeping. Charles Conley is res- ponsible for picking, packing, and shipping of all or- ders. The General Counsel contends, contrary to Respondent, that three additional men, characterized by Respondent as "lead workers," are also supervi- sors within the meaning of Section 2(11) of the Act.' These are Herb Payton, Reno Deaton, and Randy 6 Sec 2(11) of the Act reads as follows The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend , lay off, recall, pro- mote, discharge, assign, reward, or discipline other employees, or res- ponsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exer- cise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment AMERICAN BOOK DIVISION Conley. Payton is assigned to the freight line, Deaton to the parcel post (mail) line, and Randy Conley to the receiving and reserve areas. Respondent con- tends that the three individuals have no authority to hire, transfer, suspend, discipline, layoff, recall, re- ward, grant pay raises to, assign or direct the work of, or adjust the grievance of any employee. The General Counsel concedes that these men do not have the authority to hire, fire, or directly discipline employees, but contends that they assign work and responsibly direct employees. Respondent takes the position that any assignment or direction on the part of Payton, Deaton, and Randy Conley is merely rou- tine. The three leadmen each earn $3.95 per hour, whereas regular employees "top out" at $3 per hour. The top rate for employees performing layout work is $3.25 per hour and "mule-drivers" may earn $3.35 per hour. Only the maintenance man and receiving clerk earn the same rate of pay; namely, $3.95 per hour. The record indicates that all three leadmen attend- ed a course at the Thomas Moore School at the ex- pense of the Respondent. The course, according to Deaton, was concerned "generally in how to get along with people." Deaton testified that the only other persons to attend this course were Foreman Charles Conley, Assistant Plant Manager Mader, Jim Kafel, who was also at one time a "leadman," and Eldon Kaiser, who is the receiving clerk. Employee Mary Hughes testified that, at several monthly meetings with employees, Ulbricht said the following: If we run out of work we were to see our su- pervisor. If it was the freight line we seen Herb Payton . If it was the mail line we seen Reno Deaton. If it was mule drivers they went to Ran- dy Conley. Her testimony was corroborated in substantial part by employees George Rassenfoss and Carl Cooke and was not specifically denied by Ulbricht. At this point, an examination of the testimony con- cerning the specific duties of Payton, Deaton, and Randy Conley appears necessary 1. Herb Payton Payton is assigned to the freight line where he sorts orders, assigns work, and checks on the workflow. George Rassenfoss testified that Payton would dis- 415 pense orders and send employees to other areas if such employees were not busy. Rassenfoss also testi- fied that Payton told him, "You are to do what I tell you or else, I am your boss." Rassenfoss admitted, however, that he did not personally consider Payton or Deaton his boss. John Sullivan testified that Pay- ton spends approximately 15 percent of his time sort- ing orders and approximately 50 percent of his time checking and walks around to make sure employees are working. According to Sullivan, if employees are not working, Payton will tell them to go to work. Sullivan stated that most of his orders come from Payton and he asks Payton for permission to leave early. Sullivan also testified that Payton asks him to work overtime and, at some time after the election, Payton threatened to fire him for not working over- time. According to Sullivan, Payton said, "If you can't work on Saturday then I won't need you this fall." Sullivan did not work overtime on that occa- sion because his wife was expecting a baby. Bessie Prather testified that she asked Payton if she could try out for layout work and that Payton said yes, but added that if she made it and didn't like it, she would have to stay. She also stated that Payton told her to take orders from him or he could get her fired. Fran- ces McManama testified that Payton told her the same thing. Mary Hughes testified that she asked Payton for work and he replied that she could clean up or find anything to do. Ulbricht testified that Payton does not have the authority to transfer employees without first consult- ing with Charles Conley. He also stated that the sche- duling of overtime is usually announced over the public address system and Payton does not schedule or assign overtime. Ulbricht admitted that Payton is responsible for assigning rush orders. Charles Conley corroborated Ulbricht's testimony and added that sorting and checking takes up much of Payton's time. Charles Conley also testified that he (Conley) spends 90 percent of his time on the warehouse floor. In this regard, we note that Conley's office is located on the warehouse floor, and we assume that Conley does not devote 90 percent of his time to supervising the operations of the freight line and parcel post line. We base this assumption, in part, on the uncontroverted testimony of George Rassenfoss who stated that Charles Conley visits the freight line once or twice a day for 10 to 15 minutes each visit and visits the parcel post line two or three times a day. According to Rassenfoss, sometimes Conley might remain for 15 or 20 minutes or, on occasion, he may stay for an hour. Significantly, Payton did not testify. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Reno Deaton Deaton is assigned to the parcel post or mail line, and his duties are generally similar to those of Pay- ton. George Rassenfoss testified that Deaton goes up and down the packing line to see if everybody has enough work to do and he will distribute work and check the filled orders. Rassenfoss stated that he nev- er saw Deaton help out packing. Carl Cooke stated that he followed Deaton's orders. Cooke testified that the packing was usually routine, but, occasional- ly, Deaton would assign him packing projects. Ac- cording to Cooke, Deaton occasionally initialed Cooke's timecard and a few times said, "Let's cut out a little of the talking and do some work" or "do more work," or words to that effect. Cooke also said that Deaton complimented him on his work. Although overtime is usually announced over the public ad- dress system, Cooke was able to recall one instance where he asked Deaton if he could work overtime on a Saturday and Deaton gave him permission. Mary Hughes testified that Deaton assigned special orders to her, asked her to work overtime, and told her that he was boss of the mail line. Bessie Prather testified that she once took a day off after checking with Charles Conley. When she came back, Deaton repri- manded her for not coming to him to ask for the day off. According to Prather, Deaton said, "You know I'm your supervisor and you're supposed to report to me when you want a day off." Prather added that she told Charles Conley about it and Conley said, "It was my fault. I should really have went and told Reno that you was going to be off." Deaton, in his testimony, denied that he told Mary Hughes he was the boss of the mail line. He also denied that he bawled out Bessie Prather for not in- forming him that she was taking time off. Deaton described his job as follows: I check parcel post orders and pack some- times; I may run a postage machine, help with the bander, make billboards for the shrink wrap machine-a lot of different things. However, on cross-examination, Deaton was un- able to say how much time he worked on the various machines. He stated that he spends 60 to 70 percent of his time checking. This consists of taking an order and checking it against the books according to code, author, and title. Deaton denied that he has the au- thority to schedule overtime or to allow people to take time off from work. He also denied that he moves employees from one work station to another without checking with someone else. Deaton testified that approximately 25 employees worked on the par- cel post line. Charles Conley described the authority of Deaton and Payton with respect to dispatching orders as follows: In case a packer doesn't have anything on their table to pack then they have the authority to move a stack of books from one table to the next, to keep the flow going, or if someone should run out of orders to fill they have the authority to give them another stack of orders. Conley stated that overtime for the full group is announced over the public address system. If only a select group is required, Conley testified that he goes around and personally asks each person if he would like to have some overtime. Conley stated that Dea- ton and Payton do not have the authority to grant employees a day off, but he did not contradict the testimony of Bessie Prather who stated that Conley told her that she should have informed Deaton that she was going to be off. 3. Randy Conley Randy Conley is the leadman in the receiving and reserve areas. Arnold Burch, a tow motor operator, testified that Randy Conley tells him what to do, has asked him to work overtime, and transfers him to another area if he is not busy. Burch added that he has seen Randy Conley give orders to other tow mo- tor operators. Burch stated that the work of moving books is routine and that basically Randy Conley is trying to balance the flow of work. Arnold Mader testified that Randy Conley gener- ally lacks any supervisory authority. According to Mader, Randy Conley does not schedule overtime and is supposed to check with Ulbricht, Charles Con- ley, or him (Mader) before transferring an employee. Randy Conley did not testify. 4. Conclusion and findings regarding the status of Payton, Deaton, and Randy Conley The issue of whether an individual is a supervisor within the meaning of the Act is quite common, but also complex. It is settled law that Section 2(11) of the Act' is to be interpreted in the disjunctive and that "the possession of any one of the authorities list- ed in Section 2(11) places the employee invested with this authority in the supervisory class." 8 Moreover, Section 2(11) of the Act "does not require the exer- cise of the power described for all or any definite 7 See in 6, supra 8 Ohio Power Company v N L R B, 176 F 2d 385, 387 (C A 6), cert denied 338 U S 899 (1949) AMERICAN BOOK DIVISION part of the employee' s time. It is the existence of the power which determines the classification." I However, the application of the statutory factors to a specific case, in order to ascertain whether or not the terms of the statutory definition are met, is no simple task. Supervisory determinations cannot be made on the basis of any hard and fast rules. Rather, the finding of whether the supervisory power in fact exists can only be ascertained as a result of an analy- sis of the facts of each case. On the basis of the evidence in the record, we find that Herb Payton, Reno Deaton, and Randy Conley are supervisors within the meaning of Section 2(1) of the Act. It is undisputed that all three leadmen assign and check work and are charged with the responsibility of maintaining an even flow of work. It is also clear that Ulbricht informed the employees that the three leadmen were supervisors. The record also reveals that all three transfer employees to other work areas. Although Respondent contends that these transfers occur only with the consent of high management of- ficials (i.e., Ulbricht, Mader, and Charles Conley), there is no evidence that the employees were told that the leadmen were merely conduits for the in- structions. Furthermore, it appears that these tempo- rary transfers were instigated by the leadmen, who admittedly had the responsibility to keep the work- flow even, and Respondent offered no evidence that any transfer requests by leadmen were ever refused. The facts herein do not present a typical "lead- man" situation, which involves a skilled or experi- enced employee directing the work of lesser skilled employees. Instead the record indicates that Payton, Deaton, and Randy Conley do very little work simi- lar to that performed by other employees, but rather spend almost all their time assigning, sorting, check- ing, and keeping the workflow even. It is noted that, during the period immediately pre- ceding the election, Respondent employed approxi- mately 80 employees at the warehouse. However, Re- spondent had employed as many as 153 employees just 7 months prior to the election and operated un- der the same arrangement as to plant supervision. To find, as Respondent contends, that Plant Manager Ulbricht, Assistant Plant Manager Mader, and Fore- man Charles Conley were its only supervisors would present the unlikely picture of these individuals su- pervising many employees working in a warehouse of over 200,000 square feet with the radio of I supervi- sor to about 50 employees during busy periods. This situation is even more unrealistic when the fact that Ulbricht and Mader spend a substantial part of their 417 time away from the plant is considered. Additionally, the unexplained failure of Payton and Randy Conley to testify leaves the testimony of various employees concerning their actual superviso- ry conduct unrebutted. Thus, the record indicates that Payton dispenses orders, transfers employees to other areas, makes sure employees are working, and, if they are not working, tells them to go to work. Payton has also threatened to fire employees for not working overtime and for not taking orders. Payton also has the authority to grant time off to an employ- ee who is sick. Randy Conley gives order to employ- ees, asks employees to work overtime, and transfers employees to other areas. Although Deaton testified and contradicted certain testimony regarding his su- pervisory authority, much significant testimony re- mains unrebutted. Thus Deaton assigns work and special orders, has asked employees to work over- time, transfers employees, has authority to grant time off, and has initialed timecards. Finally, we note that the three leadmen earn con- siderably more than the rank-and-file employees, at- tended management meetings up until a short time prior to the filing of the petition, and attended classes at the Thomas Moore School at the expense of Re- spondent. In view of the above, we find that the preponder- ance of the evidence establishes that Herb Payton, Reno Deaton, and Randy Conley responsibly assign and direct the work of employees and are supervisors within the meaning of the Act.10 and that Respon- dent is therefore responsible for certain conduct en- gaged in by them. C. Alleged Interrogations, Threats, and Surveillance 1. The conduct of Robert Ulbricht The complaint alleges that on February 4, 1972, Ulbricht interrogated Elizabeth Vaughn and warned her to suppress her opinions about the Union iii or- der to discourage her sympathy for, interest in, and activities on behalf of the Union. Vaughn, an office clerical employee, who was not eligible to vote in the election, testified that Ulbricht summoned her to his office and asked her whether she had made a statement that management created a need for a union. According to Vaughn, she replied she had, and Ulbricht asked her if she had said that Charles Conley was the cause of the trouble down- stairs. She replied she had not. Vaughn also testified 10 See Lawrence Rigging, Inc, 202 NLRB 1094 (1973), The Pearson Bros Company, 199 NLRB 1179 (1972), Allen-Morrison Sign Co, Inc, 79 NLRB 9Id at 388 904(1948) 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Ulbricht asked her for her resignation. 1I Vaughn testified that, after she admitted that she made the statement that management created a need for a union, Ulbricht told her "to keep my damn mouth shut and keep my opinion to myself." Ulbricht testified that he asked her only if she made the statement concerning Charles Conley. Ac- cording to Ulbricht, Vaughn denied it and gave no- tice of her resignation. Ulbricht's version of the con- versation did not include any warning directed at Vaughn to supress her opinions about the Union. It is apparent that a finding either that Respondent did or did not violate Section 8(a)(1) by the above alleged conduct is dependent upon a resolution of conflicting testimony. We are unwilling to make such a credibility determination based on this record and without the benefit of any observation of the witness- es. Although we could remand the proceeding for further hearing before another Administrative Law Judge, such a course of action would unnecessarily delay the disposition of this case. In view of our find- ings, to be discussed, infra, that Respondent violated Section 8(a)(1) by various acts of interrogation, threats, and surveillance, any additional finding of a violation based on the above-described alleged con- duct would be cumulative and would not affect the Remedy herein. Accordingly, we find it unnecessary to determine whether Respondent violated Section 8(a)(1) of the Act by the actions of Ulbricht. 2. The conduct of Arnold Mader Arnold Burch testified that on January 25, 1972, he was wearing a union button when Mader ap- proached him and said, "I can't understand why you're for it." Nothing else was said. We do not con- sider this casual remark as an interrogation which could reasonably coerce Burch in the exercise of his Section 7 rights. 12 We find, therefore, that Respon- dent did not violate Section 8(a)(1) of the Act by the conduct described above. The complaint alleged that Mader threatened Mary Prater that, if the Union were selected by the employees, the Respondent would be required to lay off by seniority and that she, being low on the list, would be among the first employees to be laid off. Prater testified on direct examination that Mader told her he was surprised to find her with a union button and that, if the Union came in, there would be a layoff of 25 people and she would be on the layoff list since her seniority wasn't very high. On cross-examination, Prater testified that she told Mad- ii This was not alleged as a violation 12 See Sandy's Stores, Inc, 163 NLRB 728 (1967), enforcement denied on other grounds 398 F 2d 268 (C A 1, 1968) er that she heard a rumor that 20-25 people would be laid off. When she asked Mader if she would be laid off if the Union got in, Mader replied that, if he could, he would try to keep her. In a letter dated February 7, 1972, to a Board examiner, she wrote the following: Mr. Mader also told me that if a union goes in that they would be allowed to lay off and with a union they would have to go by seniority and I would be on the low list. He said they could lay off at least 20-25 persons and still run the plant. And he said by me being down on the list he couldn't understand why I would want to vote for something that would put my job on the line. Mader testified that he simply told Mary Prater that the Respondent could have laid off 10-20 people but had refrained from doing so. In view of Prater's inconsistent testimony, which is subject to various interpretations, we find that Gen- eral Counsel has not established that Mader threat- ened Prater that she would be laid off if the Union were successful. Accordingly, we shall dismiss this allegation of the complaint. The complaint alleged that Mader threatened Ar- nold Burch and Mary Prater on January 24 and 25, 1972, that, if they selected the Union, they would lose everything they had, including benefits provided by Respondent. Prater testified that Mader said the company benefits would stop until this union thing was settled On cross-examination, however, she stat- ed that Mader said that the company benefits were good and he didn't know what kind the Union had. Arnold Burch testified that he was discussing bene- fits with Mader who said, "You know, all of this drops and it's got to be negotiated and you could wind up with less." Mader denied telling Burch that benefits would be taken away, but stated that he said they would be negotiated. Respondent also intro- duced evidence that Ulbricht, in his final campaign speech given before the election, told the employees "it was untrue that benefits were going to be taken away by the Company if the Union won," and dur- ing the campaign, Respondent distributed a letter to the employees, explaining that existing benefits "could be eliminated just as well as they could be improved." It is clear that Burch's testimony is at odds with Mader's and a credibility conflict exists. In light of our findings, discussed infra, that Respondent en- gaged in extensive 8(a)(1) conduct, we find it unnec- essary to resolve the credibility conflict as any addi- tional finding of violations would be cumulative. Therefore, we make no finding with respect to this complaint allegation. AMERICAN BOOK DIVISION 419 The remaining alleged unlawful conduct attributed to Mader concerns an alleged threat to employees Rassenfoss, Sullivan, and Kinman in January 1972 that, if they selected the Union, Respondent would cease providing all existing benefits. Rassenfoss testi- fied that Mader told Kinman and himself that if the Union came in they would lose all their benefits. Rassenfoss added, however, that "it had to be negoti- ated," and Mader said, "Yeah, that's right." Kinman testified on direct that Sullivan asked Mader if the employees would still have insurance if the Union were voted in, and Mader responded that the insur- ance of the Union would not be any good. On cross- examination, however, he admitted that Mader may have said that the Union had its own insurance poli- cy that they would probably want to put into effect. Sullivan testified that Mader responded to his ques- tion by saying that it wouldn't be taken care of until things were negotiated. On cross-examination, Sulli- van added that he asked if his wife would be taken care of by Metropolitan insurance. Mader said, "No. Things would have to be renegotiated," and added that the employees might not want Metropolitan and they might not agree to it. Mader denied he told the employees that benefits would be taken away if the Union got in, but stated that he said "if there was to be a Union there would be a renegotiation of all benefits, up, down, maybe they would remain the same, who knew? [He] didn't." His testimony was corroborated by employ- ee Ethel Evans. Even accepting the testimony of the General Counsel's witnesses, we find that- the evidence falls short of establishing that Mader threatened that Re- spondent would take away benefits if the Union got in. Instead the testimony indicates that Mader stated that benefits would have to be negotiated, a state- ment which is not violative of the Act. Accordingly, we shall dismiss this allegation. 3. The conduct of Charles Conley It is alleged that, during September 1971, Conley threatened to discharge employees for engaging in protected concerted activities in protesting the dis- charge of a fellow employee , Walter Meyers . Shortly after Meyers' discharge several signs appeard in the aisle protesting the discharge . Employees Hughes and Coots testified basically that Conley called a meeting of the employees and said "that if he knew who put up the signs he would fire them and if we didn't like the way the place was run we could clock out." Conley denied the threat to fire anyone, but testified that he told the employees "there's a lot of you here that isn't happy with the way that manage- ment runs this Company, and I'm really surprised that some of you don't punch out." His testimony was basically corroborated by William Hutchinson." There is a credibility conflict here as to whether Con- ley threatened to fire the employee who put up the signs. Clearly, if such a threat were made, it would violate Section 8(a)(1). However, for the reasons pre- viously stated, we find it unnecessary to resolve the credibility conflict and we shall make no finding with respect to this complaint allegation. The complaint alleges that on December 10, 1971, Conley warned employees Randy and Ricky Mc- Kenzie, who were wearing "Union 76" shirts, to take them off because Respondent was not having a union. Several employees testified that Conley told the McKenzie twins to take of their T-shirts because "we'll have no union here." Conley testified that he said, "Hey, what are you two trying to do, start a union here?" He added that there was general laugh- ter. Randy McKenzie corroborated Conley's testimo- ny, stating that it wasn't serious, a "sort of teasing and joking," adding that, when he and his brother wore the shirts, he had no idea that there was union activity taking place. Based on the above testimony, particularly that of McKenzie, we shall dismiss this allegation. Conley allegedly interrogated George Rassenfoss on December 28, 1971, and January 5, 1972. The first incident relates to a conversation at a local bowling alley, where Conley called Rassenfoss over to a group of people and asked him if it were true that he (Rassenfoss) sent union representatives to hand out cards. The following week, Conley asked Rassenfoss why he was so interested in getting a union in, and Rassenfoss explained his reasons. Respondent does not deny that the conversations occurred, but con- tends that the discussions were isolated and friendly. Contrary to Respondent, we find that the above-de- scribed interrogations were not isolated, but rather two of many "casual" interrogations involving sever- al employees, and that Respondent's conduct violat- ed Section 8(a)(1) of the Act. Conley is alleged to have engaged in surveillance on January 3, 1972. Several employees testified that they saw Herb Payton outside a union meeting at employee Frances McManama's house. Only McMa- nama testified that she saw Conley with Payton. She said that, "as far as I could tell," it was Conley. Con- ley denied being there. In our view, the evidence is insufficient to warrant a finding that Conley was pre- sent on this occasion. We shall, therefore dismiss this complaint allegation. 131t is noted that this event precipitated the union organizational cam- paign at the warehouse 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conley allegedly threatened George Rassenfoss with discharge on January 24, 1972, at a time when Rassenfoss was wearing a union button. Rassenfoss testified that Conley approached him and said, "George, if you don't like working here, here's the time clock. Punch out and leave." Rassenfoss added that Conley apologized for the statement perhaps a day or so later. Conley denied making the statement or the apology. There is an obvious credibility con- flict present here, which, for reasons mentioned here- tofore, we need not resolve. Conley is also alleged to have threatened Mary Prater with possible job loss on January 25, 1972, because of union involvement. The evidence disclos- es that, on the above date, Conley approached Prater and asked her if her husband was involved in a union matter. Prater answered that her husband was laid off and, according to Prater, Conley replied, "Well, it Just goes to prove my point." According to Conley, his reply was "is this what you call job security?" In our view Conley's statements to Prater were intended to convey the impression that Prater's husband was laid off because of his involvement with a union, thereby inferring that she would receive similar treat- ment. In this regard, we note that Conley initiated the conversation. Accordingly, we find that Conley's statements to Prather, as described above, constitut- ed a threat of possible reprisal for union involvement and were thus in violation of Section 8(a)(1). 11 The complaint alleges that Conley told John Sulli- van that he would not receive his scheduled raise if the Union came in. Sullivan testified that he asked Conley whether he would get his raise if the Union came in and Conley answered that it would have to be renegotiated. Conley, on the other hand, testified that he told Sullivan that he would find out about his raise and that he spoke to Sullivan prior to the elec- tion, assuring him that his raise would be given as scheduled. The testimony with respect to this issue presents another credibility problem, which we find unnecessary to resolve. The complaint also contained allegations that Conley created the impression of engaging in surveil- lance on December 28, 1971, and promised an em- ployee a wage increase on January 20, 1972. Since no evidence was adduced to support either allegation, we shall dismiss the allegations contained in those paragraphs of the complaint. 14 Chairman Miller would not construe the conversation between Conley and Prater as a threat of reprisal In his view, Conley's remarks were too vague to be interpreted as implying a veiled threat that unionization inevita- bly would lead to loss of Jobs for everyone He would find that Conley was merely expressing the opinion that having a union as the employees' bar- gaining agent could not guarantee their job security He would therefore dismiss the complaint allegation relating to the conduct 4. The conduct of Randy Conley Randy Conley is alleged to have interrogated Ar- nold Burch and Jerry Reed on December 16, 1971. Burch testified that Randy Conley approached Reed and him and asked them if they had heard anything about the Union. According to Burch, the employees said they had not. Reed testified that the above con- versation did not take place. Thus, another credibili- ty problem exists. For the reasons previously ex- pressed, we do not find it necessary to make a find- ing with respect to this issue. Several employees testified that Randy Conley at- tended a union meeting on January 14, 1972. Union Vice President Hendershott asked Randy Conley if he was a supervisor and Conley replied, "Yes, I am. A working supervisor." Hendershott then asked Con- ley to leave and Conley did so. We find that this incident does not constitute unlawful surveillance as alleged in the complaint. Randy Conley attended the meeting openly for a few minutes, and there is no indication that his brief presence had any coercive effect." 5. The conduct of John Deaton Deaton is alleged to have interrogated several em- ployees on December 28, 1971, at a local bowling alley. George Rassenfoss testified that Deaton asked Bill Hutchinson, Dave Dance, and himself if they had signed cards, and also asked him if it was "true that you sent the Union representative out to our plant to hand out Union cards." Hutchinson testified that Deaton did not ask him if he signed a card. Deaton denied that he had asked Rassenfoss, Hutch- inson, and Dance if they had signed union cards and also denied asking Rassenfoss if he had sent some people to pass out union handbills. Since a clear credibility conflict exists, we shall, for the reasons previously stated, make no finding with respect to this complaint allegation. 6. The conduct of Herbert Payton The complaint alleges that, on various occasions, Payton interrogated several employees. George Ras- senfoss testified that about November 1, 1971, Pay- ton approached him and "stated to me that I knew something about the Union and I had signed a card." is Union Transfer & Storage Company, 134 NLRB 24 ( 1961) Member Jenkins would find that the attendance of Randy Conley at the meeting reasonably tended to interfere with , restrain , and coerce Respondent's em- ployees within the meaning of Sec 8(a)(I) of the Act In his view, the very fact that Conley's presence was apparent to the employees would reason- ably tend to inhibit said employees from freely participating in the meeting Colo Well Service, Inc, 163 NLRB 707 (1967) AMERICAN BOOK DIVISION Rassenfoss denied it and Payton replied, "Don't lie." On December 28, 1971, at the bowling alley, Payton again told Rassenfoss, "George, we know you signed a card." Mary Hughes testified that, during October 1971, Payton asked her if she knew anything about a union and asked her to let him know if she heard anything. On December 16, 1971, Payton asked Hughes if she had attended the December 15 meet- ing and she replied, "No, was there one?" Payton said, "Yes, at Fran McManama's house," and Hughes replied that she "didn't know anything about it." Payton said, "Well, we know there was one." John Sullivan testified that on January 4, 1972, Pay- ton asked him where the union meeting was going to be held that night. After Sullivan replied that he didn't know, Payton said, "It's going to be at Fran's house. Charlie Conley and I are going to run around there." William Hutchinson testified that on Decem- ber 28, 1971, at the bowling alley, Payton asked him if he signed a card. The above testimony was not denied by Respon- dent and, in our view, the instances described can hardly be viewed as isolated questions, as Respon- dent contends. By the conduct described above, we find that Respondent interrogated employees con- cerning their union activities, and created the impres- sion of engaging in surveillance, in violation of Sec- tion 8(a)(1) of the Act. The complaint alleges that Payton unlawfully en- gaged in surveillance of a union meeting at the home of Frances McManama on January 3, 1972. Several employees testified that they saw Payton sitting in his car in the vicinity of McManama's house at various times during the meeting. Respondent offered no ex- planation for Payton's presence at the meeting. This unexplained surveillance of the January 3 union meeting is clearly in violation of Section 8(a)(1) of the Act. It is alleged that on January 5, 1972, Payton, inter- fered with employee organizational rights. Mary Hughes testified that Payton approached John Sulli- van and herself and said that he would "talk, bribe, or do anything he could to keep John Sullivan and her [Hughes] from voting for the Union." According to Hughes, she laughed at the statement. Sullivan tes- tified that Payton said that he would do anything he could to keep the Union out. According to Sullivan, Hughes then asked, "including bribery?" and Payton smiled. Payton's statement, which occurred only a few days after his unlawful surveillance and interro- gations, was clearly intended to have an inhibitory effect on the organizational rights of employees. We therefore find that such conduct violates Section 8(a)(1) of the Act. The complaint alleges that Payton unlawfully 421 threatened an employee with loss of her job. Mary Hughes testified that Payton told her that "I [Hughes] could lose my job if the Union didn't come in." In defense of this allegation, Respondent notes that Charles Conley told Hughes that nobody would be laid off or discharged because of the Union. How- ever, the record does not reveal when Conley's state- ment to Hughes was made. In our view, Payton's statement clearly constitutes a threat within the meaning of Section 8(a)(1) of the Act.16 With respect to the remaining allegation concern- ing the conduct of Payton, to wit, an alleged state- ment to an employee that in 6 months all of the union adherents at the facility would be dismissed or terminated, no evidence was adduced in support thereof. We shall therefore dismiss this allegation. D. The Discharge or Layoff on December 16, 1971, of Frances McManama, Carolyn Coots, Bessie Prather, and Carl Cooke On December 16, 1971, the four aforementioned employees, along with Robert Willoughby, were called to Ulbricht's office and informed by Ulbricht that they were being laid off because of a slowdown in business, with the resultant lack of work. The Gen- eral Counsel contends that the four were laid off be- cause of their union activities whereas the Respon- dent interposes the defense of economic justification. Respondent presented numerous witnesses and vo- luminous data which indicated that the volume of its sales was substantially reduced. Respondent released its summer employees earlier than normal, eliminat- ed overtime, instituted a 4-day workweek in Novem- ber 1971, for a period lasting 5 weeks, and laid em- ployees off in October, November, and December, 1971. Robert Ulbricht testified that on December 10, 1971, he met with the employees, announced the end of the 4-day week, but warned that "if business con- ditions didn't pick up, we would have to have a lay- off." 17 According to Respondent, business condi- tions continued to deteriorate in December, and on December 12 or 13 Lawrence Jackel, Ulbricht's supe- nor, directed Ulbricht to reduce his employee com- plement by five employees. According to Ulbricht, he, Mader, and Charles Conley reviewed the person- 16 Chairman Miller would not find that a violation of Sec 8(a)(1) was established, because, in his view, any threat made by Payton was disavowed by Conley's statement 7 Cooke and Prather testified that Ulbricht said that any layoff would be on the basis of seniority Ulbricht denied he mentioned seniority at the December 10 meeting, and several employees corroborated his testimony In any event, we do not deem it significant whether or not Ulbncht men- tioned seniority at that time Respondent had no policy requiring that lay- offs be on the basis of seniority and had never followed seniority in laying off employees 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nel files of all employees and selected for layoff those employees considered to be the poorer performers. On the basis of their work performances McMana- ma, Coots, Cooke, and Robert Willoughby were se- lected. Bessie Prather was selected because she had previously said that she was in the process of selling her house and intended to move to Florida. Respon- dent produced memos taken from the personnel files of McManama, Coots, Cooke, and Willoughby. Mc- Manama's personnel file contained a memo dated December 10, 1971, indicating that her production was low for the period of October 7 to December 10, 1971, due to excessive talking and more than normal trips to the bathroom. Another memo, dated October 20, 1971, stated that "Fran had a habit of not being happy with job assignments. . . . She was originally moved to Int [International Department] because of excessive talking on the regular packing line." Coots' file indicated that excessive talking and excessive trips to the bathroom slowed down her production. Cooke's file contained a memo dated September 28, 1971, stating that Charles Conley spoke to Cooke about lack of production and very bad temperament toward hisjob and supervisor. Willoughby' s file simi- larly contained memos indicating poor production. On December 16, Ulbricht met with the five employ- ees and informed them that they were being laid off because of poor business conditions, and that, with the exception of Prather, they had been selected on the basis of their performance.18 Ulbricht told the five employees that they would be called back "as soon as business picked up." 11 Ulbricht testified that there have been no new hires since then, only tempo- rary summer help. The General Counsel apparently concedes that Respondent had economic justification for effectuat- ing the layoffs, but contends that the alleged discrim- inatees were selected because of their union activi- ties. Cooke testified that he first learned of the Union's organizing campaign in October 1971, and he distributed several cards. He testified that he dis- tributed some cards on December 15, 1971, and Dea- ton was about 10-15 feet away. He also stated that on December 16 he was discussing the Union with Willoughby and Deaton walked by. Deaton denied having seen Cooke distributing cards. He also testi- fied that he didn't hear Cooke and Willoughby dis- cuss the Union. Coots also distributed several union cards and, on December 15, 1971, engaged in a con- versation with Ed Foltz concerning the Union. She testified that she observed Charles Conley and Dea- ton nearby. Foltz testified that, at the time Conley was nearby, he wasn't discussing the Union with Coots. Conley testified that he observed Foltz and Coots talking but he didn't hear anything. Deaton testified that he never overheard Coots and Foltz talking about the Union. Prather had distributed about 15-20 cards "most of them at home." She did not testify that anyone connected with management observed her union activities. McManama testified that she distributed cards at work and hosted several union meetings at her home. She testified that she observed Deaton watching her on December 15, when Willoughby returned a card to her. She also claimed that on December 16 she was passing out cards at her work station and conversing with John Sullivan, when she observed that Charles Conley was watching her. She testified that Conley was staring at her from a distance of about 15-20 feet. Conley de- nied that he saw McManama passing out union cards. The fifth laid-off employee, Willoughby, signed a union card but apparently was not an active union supporter. Respondent claims that it had no knowledge of any union activities until December 2, 1971. Al- though the record reveals that Supervisor Payton was aware of the Union's organizing campaign well be- fore that date, and Payton's knowledge could be at- tributed to Respondent, it was not shown that Re- spondent had knowledge of the particular individuals involved, with the possible exception of McManama. Several of the General Counsel's witnesses testified that the organizing campaign was conducted in a co- vert manner, and the Union instructed the employees to be careful to conceal it from management. On the basis of all the evidence, we conclude that the Gener- al Counsel has not met the burden of proving that the layoffs of Cooke, Coots, Prather, and McManama were discriminatorily motivated. Accordingly, we find that the layoff of those individuals did not vio- late Section 8(a)(3) and (1) of the Act. IV. THE REPRESENTATION CASE " There were some discrepancies between Ulbricht 's version of this meet- ing and that of several of the alleged discriminatees For example , Cooke, Prather, and McManama testified that Ulbricht stated that they were being laid off "on the advisement of the supervisor[s]" We do not consider the discrepancies with respect to the December 16 meeting significant 19 According to Respondent, in late May of early June 1972, all five em- ployees were recalled to work for the duration of the summer, but when business declined four of them were again laid off in middle or late August 1972 Prather quit in July 1972 The evidence supports Petitioner's Objection 3 which alleges that Herb Payton engaged in surveil- lance of a union meeting on January 3, 1972. The Union challenged the ballots of Randy Con- ley, John (Reno) Deaton, Herb Payton, William Kroth, Melvin Hub, and Marietta Wright. At the hearing, the Union withdrew its challenges to the ballots of Kroth, Hub, and Wright. Since we have AMERICAN BOOK DIVISION found that Conley, Deaton, and Payton are supervi- sors, the challenges to their ballots are sustained. In addition to the foregoing, the Board agent challenged the following individuals because their names did not appear on the eligibility list: Frances McManama, Carolyn Coots, Bessie Prather, Carl Cooke, Robert Willoughby, Dennis Wayne Kappes, Howard M. Pinney, Daniel Lee Proctor, and Barbara J Robbins. At the hearing, the Employer and the Union agreed that the challenges to the ballots of Proctor, Kappes, Robbins, and Pinney should be sustained. Since the tally of ballots revealed that 23 votes were cast for the Union and 31 votes were cast against it, and since 7 of the 15 challenges have been sustained, the remaining challenged ballots are insuf- ficient in number to affect the results of the election. Therefore, since we have found merit in the Petitioner's objection, we shall set the election in Case 9-RC-9367 aside, sever that representation pro- ceeding, and remand it to the Regional Director for appropriate action. V. THE REMEDY Having found that Respondent has engaged in cer- tain unfair labor practices , we shall order it to cease and desist therefrom and take certain affirmative ac- tion that we find necessary to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating its employees con- cerning their union sympathies, by engaging in sur- veillance of their union activities, by conveying an impression to them that it was engaged in surveil- lance of their union activities, by threatening em- ployees with loss of their jobs in the event of a union victory, and by stating to employees that it would bribe employees or try anything to keep the employ- ees from voting for the Union, Respondent thereby interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, thus engaging in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclu- sions of law, upon the entire record, and pursuant to 423 Section 10(c) of the Act, we hereby issue the follow- ing proposal: ORDER 20 Respondent, American Book Division, Litton Educational Publishing, Inc., Florence, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees con- cerning union sympathies, engaging in surveillance of the union activities, conveying an impression to employees of engaging in surveillance of union activ- ities, threatening employees with job loss in the event of a union victory, and stating to employees that it would bribe employees or try anything to keep em- ployees from voting for the Union. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its Florence, Kentucky, facility, copies of the attached notice marked "Appendix." 21 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the election conducted in Case 9-RC-9367 on February 11, 1972, be, and it hereby is, set aside, and that said case be, and it here- by is, remanded to the Regional Director for Region 9 to conduct a new election when he deems the cir- cumstances permit a free choice of a bargaining rep- resentative. 20 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and proposed Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its find- ings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 21 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [Direction of Second Election and Excelsior foot- note omitted from publication.] APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate our employ- ees concerning their union sympathies. WE WILL NOT engage in surveillance of union activities or convey an impression to employees of engaging in surveillance of union activities. WE WILL NOT threaten employees with job loss in the event of a union victory. WE WILL NOT state to employees that we would bribe employees or try anything to keep employ- ees from voting for the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. AMERICAN BOOK DIVISION, LITTON EDUCATIONAL PUB- LISHING, INC.